Tuesday, May 23, 2017

It is about Communication

Not a great many motions cross my desk anymore. There are times when I am covering a judge's docket for vacation, and there is the occasional Motion to Waive State Mediation, but motions are not a daily issue as they are for most judges. I was recently provided with a motion that caught my attention, and it is perhaps educational to the workers' compensation community. 

This motion was electronically filed, and so displayed both a filing date and time. 

The ensuing order reminded the parties of  Rule 60Q6.115(1), that the moving party must 
personally confer with the opposing party or parties or, if represented, their attorneys of record to attempt to amicably resolve the subject matter of the motion. All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion. Any motion filed without this certification shall be summarily denied. (Emphasis added).
I have written before on "personally confer." See The Spirit of Conferring. The goal of the rule is communication. Not talking "at" someone, but speaking "with" someone. That might be in person, by phone, by email, by text, but it must be "with" and it must be a discussion. Conferring is a word that means an interactive exchange of ideas, not ultimatums or threats. 

This particular motion stated that counsel had "conferred with counsel for the  ____, or made effort to do so." It continued that "it does not appear that the _______ agrees with the Motion/relief sought." (Emphasis added). The motion requested a hearing, not because of any exceptional circumstances, and not unequivocally, but only if an order "granting relief sought is not entered." In other words, if you agree with the motion please enter an order, but if not, please hold a hearing. 

Motion hearings are not usual in Florida workers' compensation. The Rules of Procedure for Workers' Compensation Adjudication (Chapter 60Q, Florida Administrative Code) say that "The judge shall not hold hearings on motions except in exceptional circumstances." In order to justify a hearing, parties are supposed to show "good cause" in either "the motion or response." See Rule 60Q6.115(4). That a party does not prevail without a hearing is not in itself an exceptional circumstance or good cause (usually in a dispute one party wins and the other loses; losing on a motion is not "exceptional").

The good faith effort at conferring was also interesting. It was an email to opposing counsel sent about three and one-half hours before the motion was filed. In today's paradigm of electronic transmission, both the email and the motion included time documentation. The email did not start a conversation (that is "confer," see Rule 60Q6.115(1), above). The email provided a document and essentially said "tell me if you object." Three and one-half hours later, counsel filed the motion and represented that counsel had complied with the rule and "personally conferred." After three hours it "did not appear" the other side agreed.

The email attached to the motion did not support that anyone "personally conferred." The email supported at best that counsel had communicated, or provided notice of the motion before filing. Three and one-half hours before filing. Is that "good-faith effort?"  

“Personally,” per the Webster’s Dictionary means “in person <attend to the matter personally>.” This does not mean telling your staff to call someone else's staff and convey a sentiment or ask a question. That may be communication, but it is not "personally." The rule requires that the person that signs that motion picks up the phone, sends an email, sends a text, etc., herself/himself, i.e. "personally." 

“Confer” is defined by Webster’s as “to compare views or take counsel.” To “confer” does not mean an ultimatum, it means a conversation or discussion about the resolution of the subject matter; an exchange of ideas and positions, in an attempt to reach common ground. Regardless of the form of personal communication, the goal remains: an exchange or discussion. "let me know if you object" is simply not a conversation. 

And, finally, it bears mentioning that whether a party objects to a motion is good information to know. Periodically, we receive phone calls about motions, usually asking "is there an order." The short answer to that one is often "please look at the docket." But, sometimes the question instead is "why is there no order." And a common answer to that is "the 15 days for a response have not passed."

Recently, an attorney's staff conveyed to a judge's staff, "the judge does not have to wait 15 days, the opposing party does not object." That lack of objection was eventually documented with a response. But, the attorney's staff was frustrated because they had spoken to opposing counsel's staff after filing and then knew there was no objection. The judge had looked at the motion, however,  and it did not say that. The judge was not willing to enter an order, on that motion that did not say "does not object," upon the telephonic assurances of what the moving attorney's staff thought opposing counsel's staff said about the motion. 

If there is no objection, say so in the motion. If the lack of objection comes to light after filing, the non-moving party should file a response and say "there is no objection." Too time-consuming? 
sorry, that is the process, and it provides the opportunity to speak up, which we call due process.

Litigation is stressful. There are deadlines and constraints, rules and processes. But, it is probable that much of the stress can be diminished if people would talk to one another. In a world of texts, cell phones, email and more, it is just not too much to ask that litigants talk about their differences before they jump to filing a motion, a motion that may not ever have to be written, proof-read, and filed. Personally (I mean you, not your assistant) confer first, then put the response in your motion. 

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